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More on the Arizona Law: Checking the Text



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My friend Andy McCarthy suggests that those of us raising concerns about the “papers please” section of the Arizona law are either demagogues or haven’t read the law. What he doesn’t do is actually quote the section in question. I think there’s good reason why he and others who defend this law don’t want to draw attention to its actual wording. The grammar and syntax of the section are so convoluted that it is nearly impossible to discern its clear meaning, but it’s worth trying to parse. One of the bedrock principles of conservative jurisprudence is that the words of a statute actually matter, not simply the drafters’ intentions:

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 united states code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A tribal enrollment card or other form of tribal identification.
4. A valid United States federal, state or local government issued identification.

“Lawful contact” does not apply solely to law enforcement but to any “agency” of “the state, or a county, city, town or other political subdivision,” as enumerated in the law. If the drafters had wanted the law to apply only when a police officer had already come into contact with an individual because of a separate and distinct civil or criminal violation, they could have said so. If that had been their intent, they would have had no reason to include a provision for lawful contact by officials of all agencies of the state, county, local, and other political subdivisions. The list is all-inclusive because the law envisions officials from all public agencies — schools, hospitals, social services, etc. — having the right to demand proof of legal residence any time the official has “reasonable suspicion” that the person is an illegal immigrant.

But even in the law enforcement context, “lawful contact” gives wide berth to police officers to approach individuals on the street, the so-called Terry standard. And in this instance, the law specifically permits that contact to occur solely on the basis of “reasonable suspicion” that the person is an illegal immigrant. The drafters could have insisted on a higher standard, such as “probable cause,” but chose the lower threshold to cast a wider net.

So what constitutes “reasonable suspicion?” The original draft of the legislation did not include any restrictions on using race or national origin in determining “reasonable suspicion,” but the final bill signed by the governor did add the caveat that law enforcement or other government officials “may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution.” Again, words matter, and the inclusion of “solely” in this provision is no accident.

Andy surely knows that the whole defense of racial preferences in college admissions and employment rests on the notion that race is simply one of many factors taken into account. But as the Center for Equal Opportunity’s studies on racial preferences in college admissions have definitively shown, whenever race is taken into account — even as one of many factors — it always becomes the deciding factor. And it will here as well. We conservatives can’t have it both ways: either we’re for race-neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.

This law does nothing to secure the border. Moreover, contrary to popular belief, illegal immigration is down significantly. It peaked in 2000 and is down both nationally and in Arizona. From 2008–09, 1.2 million illegal immigrants left the U.S., including more than 100,000 in Arizona alone. The number of aliens caught trying to cross the border last year reached a 35-year low, according to DHS figures. The decline is partly the result of better enforcement, but the poor economy is probably a bigger factor. (Crime is also down across the country, and in Arizona it’s gone down more than it has nationally — at the very time that illegal immigration was increasing.) If conservatives really want to stop illegal immigration, we’re going to have to figure out a way either to shrink our economy on a permanent basis so that we don’t need manual laborers and service workers — something I’m convinced groups like FAIR and Numbers USA would have no trouble accepting in return for a smaller U.S. population — or we’re going to have to come up with a reasonable, market-based immigration system to allow more people to come here legally to work. Harassing illegal immigrants — as wells as U.S. citizens or legal residents who some government bureaucrat or bad-apple cop decides look like they might be illegal aliens — isn’t going to solve the immigration problem.



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